Legal Opinion: Should the rules governing industrial action be overhauled?

On 12 May 2011, the Government announced a wide-ranging review of employment law covering a number of areas from the levels of compensation awarded by employment tribunals to the arcane workings of TUPE.

The Chancellor of the Exchequer called on business leaders to join the debate and make the voice of the employer heard. At the same time, the issue of industrial action has returned to the front pages, making a number of headlines over the last few weeks. It is unsurprising, therefore, that there has been growing speculation that the Government is seriously considering an overhaul of the rules governing strike action.

High-profile disputes

Perhaps the most high-profile example in recent months has been the intensely bitter dispute between British Airways (BA) and Unite, which finally reached a settlement on, coincidentally, 12 May 2011. During the dispute, BA scored a victory by successfully challenging the validity of a ballot of cabin crew members which would have sanctioned the use of industrial action over the crucial festive period in December 2009. Subsequently, a second injunction was awarded to BA in May 2010, blocking further proposed strike action. Notwithstanding that the latter injunction was discharged on appeal by Unite, in general the courts had demonstrated a willingness to apply the strictest letter of the law in favour of the employer. It is fair to say that the unions did not welcome this approach.

Ten months later, in March 2011, the Court of Appeal held, in a case brought by two rail unions, that minor mistakes in balloting were not sufficient to halt strike action. This apparent reversal in attitudes was hailed by the unions as a “massive victory”. The mood following the ruling is that it is now much easier for trade unions to arrange a valid ballot and consequently take industrial action. Needless to say this has provoked further calls for the Government to step in.

In another high-profile case, the ongoing battle between Transport for London and the RMT union over cuts on London Underground has provoked angry demands on both sides. Never shy of provoking intense debate, Boris Johnson called for a change in the law to ensure that strike ballots would only be valid where more than half of those entitled to vote actually did so (currently a ballot’s validity is based on those who do vote, which may be a small percentage of all those actually entitled to vote). Mr Johnson’s comments were seized upon by the unions as an indication of a renewed campaign against them. Nevertheless, the debate produced strong arguments on both sides. The proposal originated as a recommendation of the CBI, which argued that disruptive industrial action should not be allowed to occur on the back of the apathy of union members, leading to strikes which are not necessarily widely supported by those members. On the unions’ side, there is concern that members’ democratic say should not be undermined by other members exercising their right not to vote.

Is reform on the cards?

It is important to note the context in which the debate over reform of the rules governing industrial action has arisen. It is impossible to escape the feeling that speculation over ballot reforms has reached a level entirely disproportionate to any suggestion by the Government that it is considering them. Perhaps one reason for this is that, despite the hugely disruptive industrial action of both BA and London Underground employees, industrial action in this country is the exception rather than the rule. That is to say, the relations between the unions and employers and the rules that govern dispute resolution are largely working.

In conclusion, both sides express dissatisfaction with the current framework, but that could be an indication that the balance achieved is about right. This is an area of law in which it is impossible to reach a solution that satisfies both sides and to satisfy one side over the other would undermine its core aim: to facilitate and encourage negotiation and settlement long before industrial action is seen as necessary or desirable. It is time, perhaps, for both parties to revisit the 2005 Code of Practice published by the erstwhile Department of Trade and Industry (now the Department for Business, Innovation and Skills). The code aims to promote the improvement of industrial relations and good practice in the conduct of trade union industrial action which, if adhered to, should go a long way to allay both parties’ fears.